By Leslie King O’Neal
Hinkes v. Sunera Technologies, Inc.–Is “Excess Evidence” Grounds to Vacate Award?
Sarah Hinkes sued her employer, Sunera Technologies, and two employees for alleged discrimination that violated federal statutes.[i] The lawsuit was stayed pending arbitration. The arbitrator ruled in the employer’s favor and the trial court confirmed the award.
Hinkes moved to vacate under FAA Section 10(a)(3)[ii] which allows an award to be overturned when: ” the arbitrators were guilty of misconduct in refusing to postpone the Hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced.” (emphasis added)
Hinke did not contend the arbitrator refused to hear evidence she presented. Despite the wording of §10(a)(3), she asserted the novel theory that the arbitrator erred by hearing too much evidence. Specifically, Hinke objected to witness testimony about a non-witness’s comments regarding Hinke’s conduct. Hinke asserted that, “allowing hearsay to substitute for a witness not disclosed in discovery evaded the spirit, if not the letter,” of the applicable AAA rules. Hinke also objected to the arbitrator’s admitting previously undisclosed documents into the record.
7th Circuit Upholds Award, Finding No Arbitrator Misconduct
Noting that neither the Federal Rules of Evidence nor the Federal Rules of Civil Procedure apply in arbitration, the Seventh Circuit found no arbitrator misconduct requiring vacatur. As the court observed, arbitrators or associations such as AAA or JAMS may replace the federal evidentiary and procedural rules with more streamlined approaches. The arbitration agreement for Hinke’s case adopted the “Michigan Court Rules” and the AAA’s Model Employment Arbitration Procedures. Before the hearing, the parties agreed to apply the AAA rules. As Judge Easterbook noted, “People often choose arbitration because they believe adjudication will be cheaper and faster, if not necessarily more accurate, when complex rules used in court can be bypassed.”
Arbitrator Error Not Enough to Vacate Award
Even if the arbitrator erred in allowing the witness testimony, that was not enough to vacate the award under FAA 10§ (a)(3). This subsection addresses only the arbitrator’s refusal to receive evidence, not receiving excess or unreliable evidence. The court noted, “Federal judges should not set aside awards for reasons of their own devising, rather than those specified by Congress.”[iii] The court also stated, “Nothing in the Federal Arbitration Act requires arbitrators to execute their instructions perfectly.”[iv]
Arbitrators and “Unreliable Evidence”
While removing evidentiary and procedural rules makes arbitration hearings cheaper and faster than court proceedings, parties may be concerned about arbitrators allowing “unreliable evidence” into the record. The rise of “deep fakes” (completely computer-generated video, audio or images. AI can clone a persons voice and create a realistic video of them doing or saying something they never did)[i]; fabricated documentation (creation of entirely fake digital or physical records, such as receipts, contracts, pay stubs, vehicle titles)[ii]; “shallow fakes” and altered evidence (using Ai to manipulate authentic records by changing dates on an email, inserting paragraphs into a contract or altering photos and videos); AI Hallucinations (false citations that can create completely non-existent case law, statutes, news articles or expert analysis to support a false claim).
AI-Generated Evidence Creates Doubt About Authentic Evidence
The ease in producing AI-generated fake evidence makes it easier to dismiss valid evidence (such as video recordings) as false. Also, it creates doubt about evidence previously considered reliable, such as government records. Judge Erica Yew[vii] noted in an NBC News interview that a party could generate a false vehicle title, record and present it to a government clerk who, not knowing it was fraudulent, would put it in the official records. The party could then obtain a certified copy and present it as authentic evidence. As Judge Yew stated, “Now do I, as a judge, have to question a source of evidence that has traditionally been reliable?”[viii]
Courts, Legislatures, Arbitral Associations Respond to AI Evidence Issues
Some courts and legislatures are responding to the need for better tools to identify AI-generated evidence reliably. Proposed Rule of Evidence 707 would subject machine-generated evidence to the same reliability standards as expert testimony.[ix] The Louisiana legislature recently amended its Code of Civil Procedure related to authenticating AI evidence in courts.[x]
Tools and Training for Arbitrators
Commentators on international arbitration suggest arbitral tribunals can use case management orders, disclosure protocols and neutral experts to create safeguards for AI-generated evidence.[xi] AAA partnered with Integra Ledger, a blockchain-based document authentication platform to provide a secure, blockchain-powered document registration and authentication service.[xii] Sponsored by the ABA International Law Section and credentialed exclusively through New York Law School, TechCred is the first certification for neutrals and legal counsel providing training in digital technologies, AI-generated evidence and ethics.[xiii] While these are helpful, more training and more tools are needed to maintain trust in the arbitration process and arbitration awards.
Takeaways
- Under the FAA, courts defer to arbitrators’ decisions on evidence. Most judges will not second guess arbitrators’ rulings.
- While the Federal Rules of Evidence and Federal Rules of Civil Procedure (and state evidence and procedural rules) don’t usually apply in arbitration, arbitrators may look to them as guidelines in evaluating evidence.
- With the rise of AI-generated evidence, arbitrators must be aware of potentially false evidence and take appropriate steps to identify it
[i][Hinkes v. Sunera Technologies, (Case No: 25-1268, 7th Circuit, May 22, 2026) https://cases.justia.com/federal/appellate-courts/ca7/25-1268/25-1268-2026-05-22.pdf?ts=1779481896
[ii] 9 U.S.C.§10 https://www.law.cornell.edu/uscode/text/9/10
[iii] Citing Hall Street Associates, L.L.C. v. Mattel, Inc., 552 U.S. 576, 583-89 (2008).
[iv] Citing Generica Ltd. v. Pharmaceutical Basics, Inc., 125 F.3d 1123, 1129 (7th Cir. 1997); Johnson Controls, Inc. v. Edman Controls, Inc., 712 F.3d 1021, 1025 (7th Cir. 2013).
[v] UNESCO, Deepfakes and the crisis of knowing, (October 2025) https://www.unesco.org/en/articles/deepfakes-and-crisis-knowing
[vi] Connor Heaton, Shay Cleary, Michael Navin, AI-generated evidence is a threat to public trust in the courts, National Center for State Courts (February 24, 2026) www.ncsc.org/resources-courts/ai-generated-evidence-threat-public-trust-courts
[vii] Judge, California Santa Clara County Superior Court, NBC News (November 18, 2025) https://www.nbcnews.com/tech/tech-news/ai-generated-evidence-deepfake-use-law-judges-object-rcna235976
[viii] Connor Heaton, et al., supra, note vi.
[ix] Proposed Rule 707. Machine-Generated Evidence: When machine-generated evidence is offered without an expert witness and would be subject to Rule 702 if testified to by a witness, the court may admit the evidence only if it satisfies the requirements of Rule 702 (a)-(d). This rule does not apply to the output of basic scientific instruments.
[x] Article 371.C, La. Code Civ. Proc. https://www.legis.la.gov/legis/Law.aspx?d=111841
[xi] Katja Maas, Deepfakes and Beyond: Arbitration as a Laboratory for Innovation, TechCred Substack, https://techcred.substack.com/p/deepfakes-and-beyond-arbitration (October 20, 2025).
[xii]The AAA® Partners with Integra Ledger to Offer Blockchain-Based Document Authentication Service for Documents, AAA News & Insights (September 25, 2025). https://www.adr.org/press-releases/the-aaa-partners-with-integra-ledger-to-offer-blockchain-based-document-authentication-service-for-documents/
[xiii]The first TechCred trainings were held in October and November 2025; more traininghttps://events.americanbar.org/event/e033a9a8-460f-4635-9dc7-67942c7ff25b/summary
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